PLC Public Sector reports:
Following David Cameron’s announcement in November 2012 that the government was calling time on equality impact assessments (EIA), Brandon Lewis (the Parliamentary Under-Secretary of State at the Department for Communities and Local Government (DCLG)) has written to all leaders and chief executives of local authorities confirming some of the key points made by the Prime Minister.
The letter, which was sent on 21 December 2012:
- Confirms the guidance provided by the Government Equalities Office (GEO) to Whitehall departments that EIAs:
o are not, and never have been a legal requirement; and
o can be resource intensive and take staff away from planning and delivering public services. - Informs local authorities that the GEO guidance applies to them and that they should use their judgement to pay due regard to equality (a duty that is imposed under section 149 of the Equality Act 2010 (EqA 2010)) without having to resort to time-consuming, tick-box exercises at the end of a decision-making process. It is key for local authorities to take a proportionate, timely approach to assessing equality at the outset and also to ensure that there is an audit trail of that process.
Although EIAs were required in connection with the general and specific equality duties contained in legislation which preceded the section 149 public sector equality duty (PSED) as the DCLG points out there is no longer any legal obligation to carry out a formal EIA under section 149 of the EqA 2010. However, it has remained general practice to do so as a way of complying with the PSED. The approach that is favoured by the Equality and Human Rights Commission (EHRC) (and indeed has been advocated by the courts in various decisions over the years as good practice) is for public bodies to undertake an analysis of the effects on equality of a particular decision. This approach means that a systematic assessment of the adverse impact any change in policy procedure or practice is carried out. The GEO’s guidance about maintaining an audit trail mirrors similar guidance issued by the EHRC. It also reflects the principles that have been developed in case law of the necessary evidence that is required to demonstrate that a local authority has fulfilled its duty to have due regard. As set out in R (Judy Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) (18 December 2008), this includes:
- A proper analysis of all the relevant material.
- Having regard to the duty before, and at the time, a particular policy is considered.
- Exercising the duty with rigour and an open mind.
- Reconsidering the duty if new information comes to light.
Whether the process of carefully documenting a local authority’s processes and thinking leading up to the decision is called an equalities analysis or an audit trail, what it will do is demonstrate that a local authority:
- Has complied with the PSED and had the required due regard.
- Addressed its mind to the PSED.
- Considered the practical impact of the proposed decision.
Although the government’s announcement is intended to reduce the administrative burden on local authorities, and indeed is said to reflect the best value guidance that was issued in September 2011, it is likely to be far more costly in terms of money and staff resources for local authorities that have failed to implement a sufficiently rigorous approach to assessing equality and end up in court facing a legal challenge that they failed to have due regard to equality in taking a particular decision or pursuing a particular policy.